Kuipers v Harrington (No 2)
[2019] VSC 190
•25 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2018 02143
| JOHANNES GERHARDUS KUIPERS | First Plaintiff |
| JUNE LORRAINE KUIPERS | Second Plaintiff |
| v | |
| GERARD HARRINGTON | First Defendant |
| THE REGISTRAR OF TITLES | Second Defendant |
---
JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 March 2019 |
DATE OF JUDGMENT: | 25 March 2019 |
CASE MAY BE CITED AS: | Kuipers v Harrington (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 190 |
---
CAVEAT – Removal – Caveator lodging caveat claiming an interest in land as chargee – Caveat lodged without proper basis – No serious question to be tried – No interest of supporting caveat lodged – Balance of convenience favours removal of caveat in any event – Goldstraw v Goldstraw [2002] VSC 491; Piroshenko v Gosjman (2010) 27 VR 489; Percy & Michele Pty Ltd v Gangemi [2010] VSC 530; Sylina v Solanki [2014] VSC 2; Carbon Black Pty Ltd v Launder [2015] VSCA 126 referred to.
COSTS – Indemnity costs – Whether first defendant should pay the plaintiff’s costs on an indemnity basis – Caveat not having a proper basis, costs awarded against the first defendant on an indemnity basis – Goldstraw v Goldstraw [2002 VSC 491; Love v Kempton [2010] VSC 254; Sovereign MF Ltd (In liq) v EOS Janus Holdings Pty Ltd referred to.
---
APPEARANCES: | Counsel | Solicitors |
| For the First and Second Plaintiffs | Mr E Moon | McCarthy Partners |
| For the First Defendant | No appearance | |
| For the Second Defendant | No appearance |
HIS HONOUR:
Introduction
The plaintiffs apply pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (TLA) for an order that the second defendant (Registrar) remove the first defendant’s caveat registered in dealing AR908523L (second caveat) from the land described in certificate of title volume 04127 folio 290, being the land at 481 Truemans Road, West Rosebud, Victoria (Land).
The caveat is the second caveat that has been lodged against the title to the property by the first defendant. On 21 December 2018, Daly AsJ ordered the removal of a caveat lodged by the first defendant in dealing AR089617M (first caveat) from the title to the Land. That caveat was removed by the Registrar on 9 January 2019. The second caveat was lodged for registration on the title to the property on 7 February 2019.
The plaintiffs’ application is supported by the affidavit of the first plaintiff sworn 20 February 2019 (February affidavit), and by the affidavit sworn by the first plaintiff in support of the application to remove the first caveat on 2 November 2018 (November affidavit).
Service on the first defendant has been proved.[1] The Registrar has written to the Court in the usual way stating that he does not intend to appear but has written to the plaintiffs’ solicitors with his comments on the orders sought and included a copy for the Court.[2]
[1]Affidavits of Chontelle Davenport, sworn 21 February 2019; and Karen Clarke, sworn 20 February 2019.
[2]Letter dated 28 February 2019.
The application initially came before Daly AsJ on 26 February 2019, at which time the first defendant appeared and was ordered to file and serve any affidavits and submissions on which he intended to rely by 15 March 2019 and adjourned the further hearing to 25 March 2019 at 10.30 am in a courtroom to be advised. This morning at 9.28 am an email was received from one Tamara O’Keefe on behalf of the first defendant that:
Due to the sudden and extraordinary extreme weather in the north west das shelf in Western Australia (sic), being caught up in the weather, I am unable to attend Court in Melbourne 25th March 2019.
I do apologise for the late notice, but as I will not be able to attend, I request an adjournment.
Please be advised I will be available after 6th June 2019.
In reference to the requested transcript as requested by you on 21st December 2018 and requested by myself on this date and again in February 2019 I still have not received the transcript and therefore was unable to formulate documents for the court by the specified date.
Please advise Mr Moon to forward a copy of the transcript.
The first defendant was immediately informed by email that:
I refer to your email below.
Please note that an application for an adjournment by email is not sufficient and the hearing will proceed this morning.
As mentioned before, you may obtain the transcript directly from the transcript provider Auscript, by paying the costs and providing the required details to Auscript. You can contact Auscript via by phone on 03 9672 5601, or by email at [email protected].
At the hearing today the matter was called outside the Court and the first defendant did not appear. I ruled that the informal application for an adjournment is refused, essentially because the first defendant was put on notice by the order of Daly AsJ made on 26 February 2019 that the matter would be heard today, but no affidavits or submissions had been filed as ordered by Daly AsJ and the excuse at the final hour was both too late and insufficient as a ground for an adjournment.
Applicable Law
Under s 89(1) of the TLA, a caveat can only be lodged by a person claiming an estate or interest in the land. The estate or interest must be established to the requisite standard by the person who lodged the caveat, if the caveat is challenged.
The plaintiff’s application is made pursuant to s 90(3) of the TLA, where any person adversely affected by a caveat lodged under s 89 of the TLA is permitted to ‘bring proceedings in a court against the Caveator for the removal of the caveat’. Section 90(3) empowers a court to ‘make such order as the court thinks fit’, and thus gives the Court a discretion. The application is in the nature of a summary procedure analogous to the determination of interlocutory injunctions.[3] The procedure is consequently interlocutory in substance, even though it may give rise to a final order.[4] The principles applicable were dealt with by Warren CJ in Piroshenko v Grosjman.[5] They are well settled. The authorities establish the following:[6]
[3]Eng Mee Yong v Letchumanan [1980] AC 331, 337 (Eng Mee); Piroshenko v Grosjman (2010) 27 VR 489, [12]-[23] (Piroshenko); Goldstraw v Goldstraw [2002] VSC 491, [30] (Goldstraw).
[4]Eng Mee [1980] AC 331, 337; Smith v Callegari (1988) V Conv R 54-300, 63,858-9; Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37, 43.
[5]Piroshenko (2010) 27 VR 489, [7]-[11].
[6]See, eg, Percy & Michele Pty Ltd v Gangemi [2010] VSC 530, [38]-[48] (Macaulay J); Piroshenko (2010) 27 VR 489, [13]-[20] (Warren CJ); Schmidt v 28 Myola Street (2006) 14 VR 447, 457, [32] (Warren CJ); Goldstraw [2002] VSC 491, [30] (Dodds-Streeton J); Sylina v Solanki [2014] VSC 2, [43] (Sylina).
(a) the Court’s power under s 90(3) of the TLA is discretionary;
(b) the Caveator bears the onus of establishing that there is a serious question to be tried that it does have the estate or interest in land as claimed;[7]
(c) if the Caveator establishes a prima facie case to be tried in relation to the estate or interest claimed, the Caveator must further establish that the balance of convenience favours the maintenance of the caveat until trial;
(d) there is a relationship between the strength of the case in establishing a prima facie case to be tried and the extent to which the Caveator must establish the balance of convenience favours the Caveator; the stronger the prima facie case, the more readily the balance of convenience might be satisfied. It is sufficient that the Caveator show a sufficient likelihood of success that, in the circumstances, justifies the practical effect which the caveat will have on the ability of the registered proprietor to deal with the Land in question in accordance with its normal proprietary rights.
[7]TLA s 89(1).
The prima facie case test is often used interchangeably with whether a serious question to be tried is established. The prima facie case test is to be preferred.[8] That does not mean that the Caveator must show that it is more probable than not that at trial the plaintiff will succeed. The Caveator must show that they have a prima facie case with sufficient likelihood of success to justify the maintenance of the caveat, and the preservation of the status quo pending trial.[9]
[8]CFHW Pty Ltd v Burness [2014] VSC 451, [17], citing Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 82 (Gummow and Hayne JJ) (O’Neill); Carbon Black Pty Ltd v Launer [2015] VSCA 126, [37] (Carbon Black).
[9]Sylina [2014] VSC 451, [20]; Piroshenko (2010) 27 VR 489, 494; O’Neill (2006) 227 CLR 57, 82.
An application to remove a caveat involves two steps:
(a) first, the Caveator must establish that there is a prima facie case - there is a probability on the evidence before the Court that the Caveator will be found to have the asserted legal or equitable rights or interest in the land;
(b) second, having done so, the Caveator must establish that the balance of convenience favours the maintenance of the Caveat on the title until trial and:[10]
that probability is sufficient to justify the practical effect which the caveat has on the ability of the registered proprietor to deal with the property in question in accordance with their normal proprietary rights.[11]
[10]Piroshenko (2010) 27 VR 489; Carbon Black [2015] VSCA 126.
[11]Piroshenko (2010) 27 VR 489, [18].
The first caveat
In her ruling of 21 December 2018, Daly AsJ recited some facts, as follows:
(a) On 4 April 2014, the plaintiffs and the first defendant (parties) executed two documents, a ‘Heads of Agreement’ (Heads) and a ‘Deed of Agreement’ (Deed). The Heads had a term of three years, while the Deed had a term of ten years (at [1]);
(b) The apparent purpose of the Deed was for the first defendant to facilitate the development of the property, which comprises 38.38 hectares, by subdividing it into ten acre lots. In the event of this development taking place, the plaintiffs would provide the first defendant with a ten acre lot from the property. Her Honour then set out cl 7 of the Deed upon the basis of which the first defendant claimed an entitlement to lodge the first caveat. The clause purported to give the first defendant the plaintiffs’ consent to the lodgement of a caveat over the Land to ‘better secure the opportunity’ for the first defendant to develop the land (at [2]);
(c) the undisputed evidence of the first plaintiff was that the plaintiffs heard nothing from the first defendant after the execution of the Deed (at [4]);
(d) on 14 May 2018, the plaintiffs entered into a contract of sale for the property for $3,050,000. Settlement of the sale is due on 14 November 2019. On 4 June 2018, the first defendant instructed Mansour Lawyers to lodge a caveat on the title of the property, apparently after he learned that the property had been sold. The grounds of claim in the caveat referred to an agreement with the plaintiffs dated 4 April 2014. Following some correspondence between the plaintiffs’ solicitors and Mansour Lawyers, on 15 August 2018, the solicitors for the plaintiffs wrote to Mansour Lawyers disputing the first defendant’s entitlement to lodge a caveat, and demanding that he remove the caveat. Mansour Lawyers’ response was that they no longer acted for the first defendant in relation to this matter (at [5]);
(e) although the first defendant’s lodgement and maintenance of the caveat is not frivolous or vexatious (at [12]), the terms of the Deed lead to a conclusion that there is limited support for the contention that the Deed confers an interest in the Land upon him (at [15]) and while the first defendant’s claim to an interest in the Land is not farfetched or fanciful, given the terms of cl 7 of the Deed, the authorities relied upon by the plaintiffs indicate that his prospects of maintaining a claim for an interest in the land are modest at best (at [16]);
(f) the strength of the first defendant’s claim to a proprietary interest in the Land does not justify the maintenance of the caveat (at [18]) and the balance of convenience favours the removal of the caveat. The caveat is an instrument which has the effect of an injunction, and as such, the usual principles governing whether it is appropriate to grant an injunction apply. In particular, given that the first defendant seeks to protect a contractual entitlement under the Deed, damages would be an adequate remedy for any breach of contract by the plaintiffs (at [18]-[19]);
(g) thus the caveat should be ordered to be removed (at [23]).
The second caveat
The second caveat lodged by the first defendant claims an interest as chargee and prohibits any dealing unless the first defendant consents in writing. The grounds of the claim are ‘charge with the following parties and date’. The parties are ‘the registered proprietors’ and the date is 14 April 2014. The affidavit of the first plaintiff shows that there is no agreement dated that date between the plaintiffs and the first defendant, but there is the Heads, the only document that answers the description in the caveat. It should be noted that the interest claimed under the first caveat was a freehold estate in the Land pursuant to an agreement dated 4 April 2014.
The Heads of Agreement
The Heads is an ill‑drawn document. It identifies the parties, being the plaintiffs as the owners of the Land and the first defendant, Gerard Harrington, and/or nominee. It identifies the Land and provides what is described as a ‘Payment Agreement’, the effect of which is that for the subdivision of the Land the first defendant will receive a ten acre parcel of the land. The rest of the Heads seem to be concerned with the grant of an option for a period of three years by the plaintiffs to the first defendant. The recitals to the Heads provide as follows:
A) The seller is the authorised and registered land owner of the properties.
B)The seller has agreed to grant to the option holder a three year call option for the properties, jointly or severally, to either purchase the properties, source a joint venture partner or investor, source a funder to develop them or to source an ultimate buyer/buyers.
C)If the option holder exercises the call option, the seller and the ultimate buyer and/or their nominees must enter into an unconditional contract of sale.
D)The option holder is entitled to earn the profit margin between the seller and buyer less any relevant costs, fees, and commissioners due to third parties.
E)There is an inherent spirit and intent within this agreement and all parties are bound by the written word as well as the spirit and intent of this agreement fully.
The operative parts of the Heads insofar as it relates to any call option is in cl 2 which, so far as relevant, provides as follows:
2. Option.
2.1Grant of option in consideration of the execution of this agreement, the seller grants to the option holder an irrevocable right and option:
(a)to require the seller to enter into a contract of sale with either the option holder or the ultimate buyer;
(b)to nominate a person or entity as selected buy (sic) the option holder to enter into a contract as the ultimate buyer, to purchase the property or properties listed on this agreement and on the terms contained in this agreement.
2.2Exercise of call option by ultimate buyer or option holder. The call option may be exercised at any time during the term of this agreement by serving a notice to the service address of the seller.
There is an option fee provided for (cl 2.8) pursuant to which the option holder, the first defendant, must pay the seller (the plaintiffs) the sum of $1 which is ‘deemed to be a holding deposit towards the purchase of the properties’. There is also a provision for termination of the option and it provides ‘This agreement can only be terminated by either of; the expiry of this agreement, or by mutual consent of both parties’ (cl 2.11).
In the definitions part of the Heads (cl 1.1) there are various definitions, including one for ‘Expiry Date’. It means the date of expiry of the Heads, ‘being three years from the commencement date’. The definition goes on to include sub‑paras (a) and (b) which refer to the non‑exercise of the call option or the termination of the agreement by mutual agreement. The defined term ‘Expiry Date’ is not then used in the body of the agreement at all. There is also in the definitions part of the Heads a definition of ‘Option Call’, which is defined to mean an irrevocable offer to enter into an REIV sale contract with an ultimate buyer. This term has not been employed in the body of the agreement otherwise than in the heading to cl 2.2. A different expression is used, namely ‘Call Option’.
It can be seen from this short recital of the terms of the Heads that although in the Recitals there is a period of three years within which the call option may be exercised be the first defendant, the operative part of the Heads does not clearly refer to any exercise period.
The plaintiffs submitted that:
(a) if the recitals are clear and the operative part is ambiguous, the recitals govern the construction;
(b) if the recitals are ambiguous, and the operative part is clear, the operative part must prevail; and
(c) if both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred.[12]
[12]Ex parte Dawes, in re Moon (1886) 17 QBD 275, 286 (Esher MR). Also see O’Loughlin v Mount (1998) 71 SASR 206, 217 per Lander J where Esher MR’s rules were adopted as good law.
In my view, construing the document as a whole and in determining what reasonable business people would have understood the Heads of Agreement to mean, the option right, if any, conferred by the Heads of Agreement is limited to the three year period commencing on the commencement date, which is defined to mean the date of the agreement, 4 April 2014.[13]
[13]As to the construction of agreements of this kind, see Australian Broadcasting Corporation v Australasian Performing Rights Association Ltd (1973) 129 CLR 99 at 109, and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 116.
In my view, in any event, the Heads is uncertain, and therefore void and unenforceable, for the following reasons:
(a) it is not clear who is responsible to pay the option holder the so‑called ‘profit margin’ or how that profit margin is to be calculated and what costs, if any, are to be taken into account;
(b) it seems that the price at which the Land is to be sold is a matter to be determined by later agreement;
(c) the agreement refers to the entry into a contract of sale but, apart from referring to an REIV sale contract does not identify any terms to be included in it, including the amount of any deposit payable or any date of settlement;
(d) the nomination provision (cl 2.1(b)) is also uncertain, because it refers to nomination of a person or entity as ‘selected buy the option holder’ to enter into a contract as the ultimate buyer (which is defined) to purchase the property or properties listed on this agreement and on the terms contained in this agreement’. The terms are not identified in the Heads; and
(e) it is unclear whether the contract of sale to be entered into is to be tripartite agreement involving the plaintiffs, the option holder and the ultimate buyer under which the option holder is to be paid some unidentified profit margin.
The Heads as exhibited to the first plaintiff’s affidavit was missing one page. That page was supplied by the first defendant at the hearing before Daly AsJ on 19 December 2018 (that hearing led to the order made on 21 December 2018 removing the first caveat). That page is exhibited to the first plaintiff’s February affidavit. It includes, as cl 4, the following provision:
CONSENT TO CAVEAT.
The seller consents and grants to the option holder and the ultimate buyer, an interest in the property for the purpose of securing the development approval, and when a Contract is offered, the option holder and/or the ultimate buyer are authorised to lodge a caveat on the title of the property, a) but the caveat shall be discharged in favour of mortgages to be lodged for a contract of purchase, b) the caveat will protect any equitable interest of the option holders until settlement of the contract by the ultimate buyer; c) cost of removal will be paid by the lodger of the caveat.
The wording of this clause is unclear. The wording states that the seller grants the option holder an interest in the property ‘for the purpose of securing the development approval’ and goes on to give the right to lodge a caveat. But it is quite unclear what interest in the property is purportedly granted to the option holder and, the right to lodge a caveat does not arise, it seems, until a Contract is offered to the sellers.
The plaintiffs submitted, and I agree, that there is no serious question to be tried that the first defendant has a caveatable interest in the Land by reason of the Heads. That is because:
(a) there is no charging clause in the Payment Agreement on page 1 of the Heads of Agreement;
(b) the call option is void for uncertainty. No price is agreed and the terms on which the Land is to be sold are not stated, nor are the circumstances in which the option holder is to be paid and in what sum;
(c) the time for exercise of the call option has expired; and
(d) clause 4, giving the sellers’ consent to caveat, is little better than a contractual consent to lodge a caveat in certain circumstances, which have not arisen and, if they had, would not give rise to an interest in the Land for the reasons given in the ruling of Daly AsJ made 21 December 2018.
For these reasons, in my view, an order for the removal of the second caveat should be made under s 90(3) of the TLA. There is no prospect that the first defendant can satisfy the Court that there is a probability on the evidence that he will be found to have the asserted right or interest in the Land, and there is no proper basis to justify the continuing operation of the caveat as an injunction preventing the plaintiffs from dealing with the land.
In any event, the balance of convenience favours removal of the second caveat. The plaintiffs have entered into a contract of sale in relation to the Land and the failure to remove the second caveat will render the plaintiffs unable to settle that contract when it is due for settlement on 14 November 2019. By contrast, since the Heads and the Deed were entered into the plaintiffs have heard nothing from the first defendant and there is no evidence that the first defendant has done anything to further the development of the Land.
Costs
The plaintiffs’ solicitors’ letter sent to the first defendant before the filing of the summons seeking removal of the second caveat made it clear that the plaintiffs would seek indemnity costs in the proceeding.[14] At the conclusion of argument the plaintiffs did so.
[14]Letter dated 15 February 2019, pages 13-16 of exhibit JGK-2 to the February affidavit.
Under s 24 of the Supreme Court Act 1986 (Vic) the power to award costs is in the discretion of the Court. Whilst the discretion is absolute and unfettered, it has to be exercised judicially, that is, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation.[15]In the exercise of the discretion, practices or guidelines have developed.[16] These practices or guidelines are not legal rules that confine the exercise of the discretion.[17]
[15]See, eg, Latoudis v Casey (1990) 170 CLR 534, 537; cited with approval in Oshlack v Richmond River Council (1998) 193 CLR 72, 86 [34].
[16]Oshlack v Richmond River Council (1998) 193 CLR 72, 86 [35].
[17]Norbis v Norbis (1986) 161 CLR 513, 537; Oshlack v Richmond River Council (1998) 193 CLR 72, 86 [35].
Although costs are in the discretion of the Court, there is a settled practice (sometimes called a general rule) that in the absence of good reason to the contrary a successful litigant should receive his or her costs.[18] It is not, however, a legal rule devised to control the exercise of the discretion.[19] The purpose of a costs order is to compensate the successful party for the costs incurred, and not to punish the unsuccessful party. That purpose is a guide to the exercise of the discretion.[20]
[18]Ritter v Godfrey [1920] 2 KB 47, 52; Donald Campbell and Co Ltd v Pollak [1927] AC 732, 809; Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460, 477.
[19]Oshlack v Richmond River Council (1998) 193 CLR 72, 86 [35].
[20]Latoudis v Casey (1990) 170 CLR 534, 563 (Toohey J, Mason CJ agreeing), 567 (McHugh J); Ohn v Walton (1995) 36 NSWLR 77, 79.
The exercise of the discretion to award costs over and above the ordinary is exceptional, being reserved for cases where the losing party has engaged in unmeritorious, or deliberate or high-minded or other improper conduct such as to warrant the Court showing its disapproval and at the same time preventing the successful party being left out-of-pocket.[21]
[21]Australian Guarantee Corp Ltd v De Jager [1984] VR 483, 502; PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24; Fountain Selected Meats (Sales) Pty Ltd v Int Produce Merchants PtyLtd (1988) 81 ALR 397, 401.
The most famous statement of the ‘unmeritorious’ ground for an award of costs on an indemnity basis in recent times was made by Woodward J in Fountain Selected Meats (Sales) Pty Ltd v Int Produce Merchants Pty Ltd[22] as follows:
I believe that it is appropriate to consider awarding ‘solicitor and client’ or ‘indemnity’ costs, whenever it appears that an action had been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.
[22](1988) 81 ALR 397, 401. See also Spencer v Dowling [1997] 2 VR 127, 147, 163; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189; Murdaca v Maisano [2004] VSCA 123.
Before making an order for indemnity costs, the Court needs to be satisfied that the conduct of the party warrants the ordering of costs on an indemnity basis. Special circumstances must be demonstrated which lift the case out of the ordinary.[23] Such conduct includes the commencement or continuation of proceedings in wilful disregard of known facts or clearly established law, as well as the commencement or continuation of such proceedings for an ulterior motive.[24]
[23]Bass Shire Council v King (unreported 15 August 1994), referred to with approval by Winneke P in Spencer v Dowling [1997] 2 VR 127, 147.
[24]Love v Kempton [2010] VSC 254, [19].
In this case, as in many others involving the forced removal of caveats,[25] the matters that support an order for costs on an indemnity basis are:
[25]See, eg, Love v Kempton [2010] VSC 254, [23]-[34]; Sovereign MF Ltd (In liq) v EOS Janus Holdings Pty Ltd [2013] VSC 347, [13]-[20].
(a) the nominated basis for lodging the caveat was without merit. There is simply no tenable basis for the finding of a charge in favour of the first defendant;
(b) the first defendant was warned before the application was filed that the plaintiffs would seek costs on an indemnity basis and was referred to the authorities that support such an order;
(c) a caveat is not available as a bargaining chip.[26] The lodging of caveat is a serious business. It has the potential to affect commercial transactions and the lives and financial interests of others, as Dodds-Streeton J noted in Goldstraw:
…the only proper purposes for lodging a caveat against a registered proprietor's title under s.89(1) of the Act are to protect the estate or interest claimed by the operation of the statutory injunction against the registration of subsequent dealings and to provide notice of the existence of the estate or interest to those who consult the Register. A caveat has a significant potential to obstruct the rights, and to damage the interests, of the registered proprietor and other parties.
…the lodgement of a caveat for an ulterior or collateral purpose constitutes a serious misuse of the relevant statutory provisions.[27]
[26]Goldstraw [2002] VSC 491; Piroshenko [2010] VSC 240, [23].
[27]Goldstraw [2002] VSC 491, [38]-[42]; see also Luther v Sayer [2009] VSC 595; cited by Love v Kempton [2010] VSC 254, [29].
As Forrest J noted in Love v Kempton,[28] a person who lodges a caveat without proper grounds –
…should be brought to book if others are forced to resort to court proceedings to remove a caveat which has no proper basis. The costs associated with the exercise are heavy and the differential between party/party costs and indemnity costs is, as Winneke P noted in Spencer, considerable. In this case to require an innocent vendor to pay the differential between party/party costs and indemnity costs, occasioned by the delinquent conduct of the caveator cannot be permitted.
[28][2010] VSC 254, [30].
The inference from the correspondence and hearing of the application to remove the first caveat is that the first defendant was attempting to use the caveat as a bargaining chip. There is no tenable basis for any charge on the Land, as claimed in the second caveat, and he should have been aware of that. Taking into account these matters, and the conclusion I have reached as to the complete lack of a proper basis for the lodgement of the caveat, this is a case where it is appropriate to make an order that the first defendant pay the plaintiffs’ costs on an indemnity basis.
The plaintiffs also seek an injunction restraining the first defendant from lodging any further caveat on the basis of the Heads or the Deed. While the first defendant’s lodgement of the first caveat was found by Daly AsJ not to be frivolous or vexatious, the plaintiffs submitted that the lodgement of the second caveat was frivolous, vexatious and an abuse of process because the first defendant’s rights (such as they were) under the Heads expired on about 3 April 2017. In these circumstances, the plaintiffs submitted that it is appropriate to order that the first defendant is prohibited from lodging for registration any further caveat or other instrument claiming an interest in the Land on the basis of the Heads or the Deed of Agreement.[29] I agree. By his actions:
[29]R & L Bell Pty Ltd v Casboult (2003) 6 VR 271, [20].
(a) in lodging the second affidavit (which he did personally and not by a solicitor, as was done in respect of the first caveat) after the order made removing the first caveat, and the delivery to him of the written ruling delivered by Daly AsJ explaining the basis of that order;
(b) basing his grounds in the caveat on the Heads when it must have been clear to him that any call option had expired and claiming a charge on the Land when no charge could arise in any event,
the first defendant has shown a profound disregard of the absence of any underlying basis for the second caveat and has displayed that he is ready, willing and able to continue to disrupt any sale of the Land by the plaintiffs in the future. There can in my view be no other explanation for his lodgement of the second caveat than his desire to disrupt that sale.
For these reasons there is a prima facie case that the first defendant will continue to lodge caveats on the title to the land if he is not restrained from doing so. The balance of convenience favours the grant of an injunction. The plaintiffs have entered into a contract of sale of the Land and there is no probability of the first defendant establishing an interest in the Land sufficient to warrant the maintenance of a caveat on the basis of the Deed (for the reasons given by Daly AsJ) or on the basis of the Heads, for the reasons given above.
Conclusion
Orders will made for the removal of the second caveat from the title to the Land and restraining the first defendant, until further order, from lodging for registration any caveat on the basis of the Heads or the Deed. However, the injunction is necessarily subject to further order, and in the absence of the first defendant appearing at the hearing, it is appropriate to reserve to him liberty to apply in relation to the continuance of the injunction.
20
0